SELLER AND BUYER

Marlborough Express, Volume XLVIII, Issue 100, 30 April 1914, Page 3

SELLER AND BUYER

A COURT JUDGMENT

Yesterday Mr F. 08. Loughnan, S.M., delivered the following judgment in tho case of John Oil a lies Spedding, plaintiff in counterclaim, y. Dalgety and Co., Ltd., defendant in counterclaim:— "This is a counterclaim filed in au action, brought by Dalgety and Co., Ltd., against John Charles Spedding for an account rendered. John Charles. Spedding confessed judgment on the action and filed a counterclaim which was heard before me. in Eieulu/Im on the 3rd day of April, 1914, and judgment was reserved. "The plaintiff claims from the defendant the sum of £75 7s 6d, being the contract price for grass seed paid by the plaintiff to the dcfcv.d::;;:, which said 'grass se^d the defend a jid has refused to deliver. The facts proved are as follows:—On 29th June. 1910, the plaintiff, a graivi and s&ed merchant, wired the defendant Company, also grain and seed merchants, to post him samples of cow grass. On the same date the defendant/wrote to the plaintiff: 'We have pleasure in handing you under separate cove*' the undermentioned samples, which we offer subject to sales or withdrawal, and hope to receive your valued order. ...

."On 30th June, 1910, plaintiff wired his reply: 'Book Sullivan, Burroughs, hold other lines under offer till Monday noon,' and on the same date a further wire: 'Post large samples cow grass.' On the same date defendant wrote plaintiff: 'Weave in receipt of your telegram of to-day's date, asking us to book samples Sullivan's and Burroughs' at 7£d and 7d, respectively, and we have much pleasure in confirming sale of these two lines.' Defendant) also posted bulk samples to plaintiff. On 2nd August, 1910, defendant replied:—'Your favor of 30th July to hand confirming sale of samples cow grass, Sullivan, Burroughs at 7|d and 7d .respectively. Mr Yong (plaintiff's manager) is at present out of town for a few days. This will have his..immediate attention an his return to Wellington. Meantime please hold pending shipping, fnstrudtions.' The defendants then weighed the sacks and put the maside in .their the Backs and put them aside in their awaiting his instructions to forward. On 6th August, 1910, defendant wrote to plaintiff :—'We are in receipt of your letter of 2nd instant, and as requested are holding the two lines of cow grass, pending your shipplnp instructions.' On 18th August, 1910, defendants wrote to plaintiff:—'We shall be glad to receive your shipping instructions for the two lines of cow grass purchased, as storage is being incurred.' On the 12th December. 1910, defendants forwarded an invoice to the plaintiff and demand for payment. ' ■ •• ■ Blenheim, 12th Dee., 1910. J. C. Spedding, Wellington, Bought of Dalgety and Co., Ltd. £. s. d. C.S. 7 D/sacks, l/-each... 0 7 0 • c Cowgrass 14.1.2—1556 lbs at 7id 47 0 0 C.8.-5 D. sacks, at 1/each ... 0 5 0 c Cowgrass 8.1.22—916 lbs ■- at 7id ... 27 13 5 £75 ~5 6 Exchange 0 2,0 x . £75 7 6 Dependency, store charges, etc. "Some days lateir the plaintiff forwarded the 'amount of the invoice' £75 7s 6d, to the, defendants. The goods remained in the. defendants' stiore uninsuired until the month of July, 1911, when the 'premises and contents were destroyed by fire. On the 24th October, 1911, the plaintiff wired to the defendants:—'Please forward my cow grass promptly.' To this the defendants^replied thufr the goods had been destroyed by fire, uniinsured, and they accepted .no responsibility. The question for the Court to decide is, whether the property in the goods had passed to the purchaser, at the time of the fire. "Under the authority of 'The Canterbury Seed Co. v. J. G. WaixJ Co.' (13 N.Z.L.R. p. .96) this is a sale oi unascertained' goods—and is a sale by sample. By the Sale of Goods Act, 1908, section 21, Rule 5, where there is a contract for the sale of unascertained goods by description, and goo_ds of that description, and in a deliverable state, are unconditionally appropriated to the contract either by the seller with the assent of the buyer, and oir by the buyer with the assent of the seller, the property.in the goods thereupon passes to the buyer. Such assent may be expressed or implied, and may be given before or after the appropriation is made. "In Rohde y. Thwaites (5 L.J.K.8., 163) the facts were as follows:—De- ' fondant agreed to buy' 20 hogsheads of sugar. Be saw the sugar in the warehouse of the plaintiff lying in a heap on the floor in quantity more than .20' hogsheads. At the time the contract was made no part of the sugar was in hogsheads, but 4 hogsheads wave filled and delivered to the defendant. Shortly afterwards the plaintiff filled up the other 16 hogsheads and called upon the defendant to take them away. The defendant answered that he would take them as soon as he could. This was held to be an assent by the defendant to the appropriation of the goods by the plaintiff, and the property passed. "T.n Wilkins v. Bromhead (13 L.J.N.S., C.P.. 76) Wilkins ordered Smith to make him a greenhouse for £50, which Smith agreed to do. When the greenhouse was finished Smith re>quested payment and (stated- he was ready to deliver. Wilkins paid. About 6 months after, the greenhouse still remaining in Smith's possession, he asked Wilkins for forwarding instructions. ' Wilkins replied asking him to keep it until it was required. Tindal J. in his judgment says: 'It is clear that an order given W one party to another to make a chattel does not of itself A'-est any property m the chattel in the party giving the order. Here the question turns not on the contract but on the subsequent facts.. On the completion the purchaser is told of it and payment requested. The price agreed is paid, tihe maker appropriates a specific thing and the purchaser assents to that appropriation. I think such appropriation and assent quite sufficient to pass-the property. It may be that a contract to make a greenhouse for a price would not pass the property in that unmade greenhouse, but why should it not pass when the green-ho-i^-! having been finished the parties as ]'■ wore meet again, and it is ate-^.-c! that for that identical green-ho-1 •■••■>. the plaintiff shall pay his mr-v-v.^ Tt seems to me that this bi-i'-s it to exactly the same thing as if 'ho. original contract had been for thf rale and purchase of that specific thi v:. It is argued that the letter of the buyer asking the maker to keep th« C''cenhouse was written before he

I had an opportunity of inspecting it. \ j The plaintiff has never made any 1 i complaint, and if he thought proper j without seeing the article to argue , j that it should be his, and paid for it, : that is as complete an assent to the : i .appropriation as I can conceive.' ; I "Applying these decisions to the

I present case, there seems to me to { have been an appropriation by the vendors assented- to by the' pur- . chaser. The contract is made by letter and telegram. The plaintiff requests the defendant to hold the ] goods for liim pending shipping in- '■ structions. The defendants' storeman ; weighs the seed and places the sacks ' aside in the store as Mr Speckling's ; property and pending instructions 'to [ forward.' The defendant notifies "the '. plaintiff that he holds the goods for i the plaintiff and asks for shipping in- 1 structions." A little later the defen- j dant/ again asks for shipping instruc- ■ tions and notifies that storage is be- I inp- incurred. Later he sends an in- I voice to the plaintiff, which refers to ! .dependency of store account etc.- The 1 plaintiff's manager in his evidence ad- j mits that he understood by that that he would have to pay storage and in- j surance. He admits liability to pay i insurance and therefore that he had ■an insurable interest in the goods— thai is that the property has passed to him. The plaintiff receives the-in-voiee and pays the price 'and allows the goods to remain from December 1910 to 24th October, 1911, well on into tllie next season, and then wires 'forward my cow grass promptly.' It was proved in evidence that cowgirass diminishes in value by keeping. The defendants were therefore compslled to appropriate the seed to the piauitiff >or run the risk of being unable to find an equally good sample from the next year's "seed. The evidence of appropriation with the assent of the purchaser seems to be ■overwhelming, and stronger than-that m the casss before quoted. Plaintiff's counsel urges, that the sale is a sale by sample, and the buyer has not had aii opportunity to compare the bulk with the. sample. It is to be noted that the sale was made on what is called a small sample—that is a sample taken from the bulk. The buyer asked for large samples—or what "in the trade are termed bulk samples—that is a. sample made up from samples taken from every sack. These were sent, and .presumably received by the buyer, and if after receiving them and paying his money he waits 15 months without asking to compare the bulk with the sample, I think it may be presumed that he was satisfied to complete without such comparison. In fact he says in evidence 'I paid the amount without taking delivery of the goods, without even examining them. I did so having full confidence in Dalgety's high commercial standing and in view of my having large '"iransactions with them from time to time.' ■ • ■ ' ■ ' "By section 22 of the SaJe of Goods Act:—The goods remain at the sellers risk until the property therein is transferred to the buyer. . •. provided that where delivery has been delayed by the fault of" either the buyer or seller, the goods are at the" risk of the party in fault as .regards any loss which might not have occurred but for such fault. "Martineau versus Kitchen,. 7 L.R.Q.8., 456, is one of the decisions on_ which this section is founded. In.. tihis case sugar was burnt in the seller's warehouse after the date at which it- ought, under contract, to have been weighed by the-purchaser and taken away."Blackburn J. in his judgment says:—'lt is in effect the buyer who requests thaVas he is going to leave the goods in the warehouse the weighing should be postponed for a time. Therefore it is in consequence of his delay that the weighing does not take place. Now by the Civil Law it was always considered that if there was any _ weighing or anything of the sort which, prevented the contract being perrecta emptio wherever that was occasioned "by one of the parties being in mora, he shall have the risk just as if the emptio were perfecta.' '; "Thati is perfectly good sense and ■ justice—that when the weighing is delayed in consequence of the interference of the buyer .so that the property did not pass, yet becaiise the non-completion of the bargain and sale which would absolutely transfer -jfche property was owing to'the delay df the purchaser the purchaser should bear the risk-just as much a>s if the property had passed. If therefore I weire unable to hold that the property passed by t<he appropriation, still uncter the authority of this proviso, the goods were at the risk of the purchaser owing to his long and unreasonable delay in taking delivery. Judgment will.be for the defendant (in counterclaim) with the usual costs."